The Bill consolidates into one Act existing procedural requirements found in
the
Acts Interpretation Act 1901 and the
Statutory Rules
Publication Act 1903. The measures will allow greater scrutiny of, and
public access to, delegated legislation.

The Bill seeks to achieve
these aims by:

defining more clearly and comprehensively the
forms of subordinate legislation subject to parliamentary review and
disallowance;

allowing the Attorney-General to issue a
certificate in specified circumstances to clarify the nature of an
instrument;

establishing a single register of delegated
legislation with legislative instruments only being enforceable if they are
on the register;

introducing public notice and consultation
procedures for changes to delegated legislation affecting business;

providing for the 'backcapture' of existing subordinate
legislation and placement on the register;

introducing
automatic sunsetting provisions requiring all legislative instruments to be
reviewed every five years;

providing for Parliamentary
scrutiny of all forms of delegated legislation with each instrument to be
tabled in each House of Parliament within six days of registration;
and

making consequential amendments to other related
Acts.

Background

As the
Administrative Review Council (ARC) noted in 1992:

The
making of delegated legislation is an area of law that usually does not
attract much public attention. Yet its operation can have significant effect
on the way individuals or businesses conduct their
affairs.
2

The history of the
present Bill underlines this point.

(a)
Recent
inquiries and legislative activity

In August
1989, the ARC convened a conference on rule-making. In June 1990, an
Issues Paper was distributed calling for public comment and input
from Commonwealth agencies.

In March 1992, the ARC presented its
Report,
Rule Making in Commonwealth Agencies, to the then
Attorney-General, Mr Duffy.

The ARC recommended that:

there should be clear guidelines for determining whether a matter
was dealt with by way of either primary legislation (ie an Act) or
secondary/subordinate legislation (legislative instruments, regulations,
rules, by-laws etc)

that the Attorney-General's Department
should be responsible for maintaining quality control over the drafting of
all legislative instruments

there should be a single piece
of legislation dealing with the making, publication and scrutiny of all
legislative instruments

the number of different types of
instrument ought to be reduced

subject to legislatively
defined exceptions, there should be mandatory requirements for public
consultation in regard to all classes of legislative instrument

mandatory consultative requirements should be limited to 'first round'
consultation only, with further consultation at the government agency's
discretion

all instruments should be subject to
parliamentary scrutiny and disallowance

where consolation as
required by the Act was not undertaken, the parliament must be provided with
reasons for consultation not taking place

instruments should
be readily accessible to members of the public by means of a public register

disallowance by either House rather than positive approval
should remain the norm for parliamentary control of delegated
legislation

the Legislative Instruments Act should permit a
deferral of the effect of a disallowance motion for up to 6 months

there should be provision for partial disallowance of a
legislative instrument by either House

instruments should be
subject to sunsetting provisions whereby all existing legislative
instruments (including those made before the new Act) automatically have no
effect after a specified date with all new instruments being subject to a 10
year sunsetting clause.

As Emeritus Professor of Law and former
Commonwealth Ombudsman, Dennis Pearce, has observed:

The
[ARC] was not breaking entirely new ground . . . Both Victoria and New South
Wales had taken steps to increase public involvement in the
legislation-making process and both had tried to bring some order into the
plethora of rules that government departments were pouring
out.
3

Between March 1992 and the
introduction of the Legislative Instruments Bill 1994 (the 1994 Bill), three
significant reports dealing with issues relevant to the present Bill were
published. These are:

The Cost of Justice Second Report:
Checks and Imbalances (Senate Standing Committee on Legal and
Constitutional Affairs, August 1993)

Clearer Commonwealth
Law (House of Representatives Standing Committee on Legal and
Constitutional Affairs, September 1993)

Access to
Justice: An Action Plan (Access to Justice Advisory Committee, May
1994).

On 30 June 1994, a Bill proposing wholesale changes to
both the
Acts Interpretation Act 1901 (the AIA) and the
Statutory
Rules Publication Act 1903 was introduced in the Senate.

On 25
August 1994, the Senate referred the 1994 Bill to the Senate Standing
Committee on Regulations and Ordinances which reported back to the Senate on
17 October 1994. The Committee endorsed the objectives of the legislation
and, with some qualifications on matters of detail, also supported the
general approach reflected in the Bill. The Government's response to the
Senate Committee's report was tabled on 8 November 1994.

The Bill was
given a Second Reading in the Senate on 9 November 1994 but further debate
was deferred and on 10 November 1994 the Attorney-General asked the House of
Representatives Standing Committee on Legal and Constitutional Affairs (the
House Committee) to report on the legislation.
4 The House
Committee reported on 9 February 1995 recommending the passage of the Bill
but proposed significant changes to the legislation as introduced including
that:

mandatory public consultation requirements be put in
place in relation to the making of all legislative instruments as soon as
possible; and

a sunsetting regime be introduced in relation
to all existing and future legislative instruments as soon as
practicable.
5

The then Government provided
its Response to the House Committee on 25 September 1995 and it was tabled
two days later. The Response indicated either support or in-principle
support for a significant number of the Committee's recommendations and
agreed that there be a review of the legislation after 3
years.
6

The 1994 Bill had not passed when Parliament
was prorogued prior to the 1996 election.

(b)
Subordinate legislation

Subject to the
Constitution, the Parliament may enact laws itself or it may authorise
another body to make legislation on its behalf. This authorisation is a
feature of most Acts of Parliament and allows for the making of what is
termed delegated or subordinate legislation by specified persons or bodies.
The ARC Report provides a convenient summary of some important features of
these laws stating that:

The [Parliament's]
authorisation may take a variety of forms. It may allow the Governor-General
to make regulations or it may confer power on some other body, such as a
Minister or public servant, to make a rule in another form with another
name. Whatever form it takes delegated legislation has the force of law just
as if it were an Act of Parliament.

Rules made by delegated
legislation have common features:

they must be authorised by
Parliament;

they usually, but not always, deal with
procedural details, rather than the broad framework of the legislative
scheme;

their making often must be notified in the
Commonwealth Gazette;

some rules can be disallowed by
parliament if it does not approve them; and

most rules are
required to be available to the public, but in a variety of
ways.
7

Most forms of subordinate
legislation come into effect on the day that they are made. Where such an
instrument is disallowed, the disallowance does not operate retrospectively
but from the date of disallowance. Hence, anything done in accordance with
an instrument during the period between its making and its disallowance is
not affected.
8

There has
for sometime been considerable interest in reforming the operation of the
laws governing subordinate legislation. This is unsurprising. The current
laws are old and at odds with the general approach to the review of
government decision-making which has operated in the Commonwealth for the
past two decades. As the present Attorney-General, Daryl Williams QC,
suggested from Opposition in 1995:

The extensions of
individual rights in relation to executive action affecting the individual
have not been matched by any major reforms in the legislative process . .
.

Even those modest changes [public inquiries by the Senate
Committees into Bills] have no counterpart in the making of delegated
legislation, where the interests of the citizen have increasingly been
sacrificed to governmental and bureaucratic convenience. The volume of
secondary legislation has grown, the variety of forms of it has multiplied,
the impact of it has become more and more significant and the ability of
citizens to assess it has lessened.
9

The above statement captures the essence of the case for
reforming the current law. One might also add, or perhaps emphasise, that
the need to improve the standard of subordinate laws is not a mere matter of
accessibility but also one of intelligibility. Many pieces of subordinate
legislation are not drafted by experts. Many are ambiguous, convoluted or
even impenetrable. In some cases this doesn't matter. In others, more
weighty matters including questions bearing on individual liberty may be
involved.

A particular weakness in the present
arrangements is that the
Statutory Rules Publication Act 1903 only
requires certain delegated legislation to be published by the Australian
Government Publishing Service. Accordingly, unless an instrument has been
published or re-published privately, no one outside the relevant government
agency may know of its existence.

(c)
As things stand

There are few
limitations on the Commonwealth Parliament's capacity to delegate
legislative power to subordinate bodies including statutory authorities,
administrative tribunals, and other parts of the Executive. Existing
limitations derive from the requirement that Commonwealth legislative power
must originate from the Constitution, for example under sections 51, 52 or
122. These legislative powers must not be exceeded nor must they be
improperly delegated. The latter point was discussed in
Victorian
Stevedoring Co Pty. Ltd. and Meakes v Dignan by

Evatt J who said:

On final analysis therefore,
the Parliament is not competent to 'abdicate' its powers of legislation.
This is not because Parliament is bound to perform all of its legislative
powers or functions, for it may elect not to do so; and not because the
doctrine of separation of powers prevents Parliament from granting authority
to other bodies to make laws or by-laws and thereby exercise legislative
power, for it does so in almost every statute; but because each and every
one of the laws passed by Parliament must answer the description of a law
upon one or more of the subject matters stated in the Constitution. A law by
which Parliament gave all its law making authority would be bad merely
because it would fail to pass the test last
mentioned.
10

Given
the few limitations on the power to delegate, and the increasing complexity
of the modern government, there has been a growing tendency for the
Parliament to delegate its law making function to the Executive. Such
delegated or secondary legislation comes in a variety of forms. For
example:

Section 70 of the
Administrative Appeals
Tribunal Act 1975 gives the Governor-General power to make regulations
required or permitted by that Act to be prescribed or necessary or
convenient to be prescribed for carrying out or giving effect to that
Act;

Item 20 of the Schedule to the
Excise Tariff Act
1921 imposes an excise duty of $0.26 per tonne on coal, as prescribed by
Departmental by-laws; and

Section 59 of the
Federal Court
of Australia Act 1976 allows the Judges of that Court, or a majority of
them, to make Rules of Court governing procedure and other administrative
matters.

In 1988, the Senate Standing Committee on Regulations
and Ordinances identified 115 different categories of disallowable
instruments.
11 The types of instrument include:

regulations, which are made by Ministers and under the control of
the Attorney-General's Department;

proclamations, which are
made by the Governor-General on the advice of Ministers;

by-laws which are made by Government departments and other statutory
authorities; and

other instruments including determinations,
directives, orders, declarations, notices, plans, formal or informal
guidelines, and standards. These instruments may be specific to issues, the
body exercising the power, or the function of the
instrument.
12

It is the uncertain nature of
the last category of instrument which was of particular concern to the
ARC.

The rapid growth in the number of statutory instruments
made in the last 10-15 years is illustrated in the following
tables.

Tables not availale
online.

Delegations Generally

The
Acts Interpretation Act 1901 deals with the construction of delegated
powers under Acts, and gives considerable width of interpretation to
delegations. For example, section 34AA of the AIA states that a power to
delegate a power or a function under an Act is to be construed widely
(unless the contrary intention appears), as applying to a person holding a
specified office or position, rather than merely to that person in a solely
personal capacity. Similarly, section 34AB of the AIA provides for a
generous interpretation of the power to delegate powers or functions under
an Act.

As with the restrictions on the power to delegate,
there are few restrictions on the content of a delegation. Generally,
however, delegated legislation must fall within some recognised head of
Commonwealth power.
13 Delegations of power have been held
invalid where the delegate has been found to be an inappropriate person to
exercise the relevant power.
14

Accountability and Scrutiny of Delegated Legislation

Recognising the risks inherent in allowing laws to be made by bodies other
than parliament, mechanisms have been developed to balance the dictates of
efficient government and the basic democratic requirement that persons in
authority operate within the law and are accountable for their actions.
Mechanisms which limit the scope of Executive discretion and which provide
for more open and accountable rule-making by government include:

The Senate Standing Committee for the Scrutiny of Bills which
reports to the Senate on the appropriateness of delegation;

Involvement of the Ministers and officers in the rule-making
process;

Section 46A and Part XII of the AIA which provide
for regulations and certain other instruments to be notified in the
Commonwealth Gazette and tabled in Parliament within 15 sitting days
of their making. The AIA also provides for a motion of disallowance to be
moved in either House within a further 15 sitting days;

The
Statutory Rules Publication Act 1903 which requires all statutory
rules (including regulations, rules or by-laws) to be numbered, printed and
sold by the Government Printer;

The Senate Standing
Committee on Regulations and Ordinances which scrutinises delegated
legislative instruments by reference to certain criteria;

Judicial review of delegated legislation;

Limited merits
review, including internal review mechanisms within departments and agencies
as well as review available through specialist bodies such as the
Administrative Appeals Tribunal.

As valuable as these checks
may be, they do not provide comprehensive protection from all forms of
bureaucratic excess. Through mandatory consultation, more comprehensive
requirements on publication of secondary legislation and the introduction of
sunsetting provisions, the present Bill adds another layer of safeguards
whilst creating some powerful disincentives to the unchecked growth of
subordinate legislation.

Main
Provisions

As already noted, both the Senate
Committee Report (1994) and the House of Representatives Standing Committee
on Legal and Constitutional Affairs Report (1995) gave general support to
the 1994 Bill but recommended further changes to strengthen the proposed
legislation. The 1996 Bill adopts a substantial number of those
recommendations.

Registered Instruments

Clause
5 defines 'legislative instrument' for the purposes of the Bill. This
clause should be read with
Schedule 1 which lists a range of
instruments which are not legislative instruments for the purposes of the
Bill. The definition of legislative instrument covers all existing
subordinate legislation which must be tabled in Parliament and regulations
and instruments required to be printed under the
Statutory Rules
Publication Act 1903. In addition any instrument of a legislative rather
than administrative nature, unless specifically excluded under
Schedule
1, must also be registered under the proposed Act if that instrument is
to enforceable.

The Bill appears to adopt the substance of
recommendation 3 of the House Committees Report regarding the
definition of legislative instrument. That Committee recommended that the
definition in the 1994 Bill be amended to provide greater guidance and
certainty but not so as to limit the meaning of the term
legislative instrument to the classes of
instrument specifically listed in the Bill. (In other words, the House
Committee supported the inclusion of a definition of
legislative instrument in the Bill but opted
for an inclusive/indicative approach rather than an exhaustive/exclusive
approach.)

The Bill does not specifically adopt the final part
of recommendation 3, ie that the definition should not encompass instruments
of an administrative character within the meaning of the
Administrative
Decisions (Judicial Review) Act 1977 (the ADJR Act
). However, the
substance of this recommendation appears to be embodied in
subclause 5(2)and is reinforced by the operation of
Schedule 1.

Clause 7 states that Rules of Court are not legislative instruments.
Schedule 4 to the Bill, however, provides that regulations made under
the enabling Acts establishing the Family Court, Federal Court and the
Industrial Relations Court are to establish court-specific regimes applying
the appropriate parts of the Bill. These provisions were endorsed by the
House Committee
15 and generally reflect a view that the
independence of the judiciary may be compromised if executive government
rules regarding the making of subordinate legislation were imposed on the
Courts.

Clause 8 provides that the Attorney-General may
issue a certificate for the purpose of determining whether an existing or
proposed instrument is or is not a legislative instrument for the purposes
of the proposed Act. Such a certificate may be quashed by the Federal Court
under the ADJR Act or, indeed, by the High Court in its original
jurisdiction conferred under section 75(v) of the Constitution.

Clause 51 provides for Attorney-Generals
certificates issued under
clause 8 to be registered under the
proposed Act.

The clause appears to adopt recommendations 5
and 6 of the House Committees Report which proposed that
certificates issued by the Attorney-General as to whether a particular
instrument is or is not a 'legislative instrument' are reviewable under the
ADJR Act.

Material incorporated by reference

Clause 11 allows other material to be incorporated into a
legislative instrument by reference to that document in the instrument. The
incorporated document is not required to be registered but

Clause
60 provides that a document incorporated (in an instrument) by reference
must be made available for inspection on request by either House during the
period that the instrument is subject to disallowance. Similar provisions
forming part of the 1994 Bill were criticised for not providing adequate
access to the law. Suggestions that some documents would be too bulky to
include as part of the Register were described by Professor Pearce as a tail
wagging the dog argument.
16 The House Committee accepted
this criticism recommending that:

. . . the [1994]
Legislative Instruments Bill should be amended to provide for the
registration of documents, other than Acts and other legislative
instruments, incorporated by reference into a legislative instrument, for
the tabling of such documents. Any changes to the incorporated document
should also be registered. An exception should apply in relation to
large-volume materials which should be made available to the Parliament for
inspection on request.
17

Consultation

Part 3 deals with procedures for
encouraging consultation between government agencies and persons likely to
be affected by subordinate legislation made by those agencies.
Clause
17 provides that such consultation is mandatory in relation to the
making of some legislative instruments affecting business and optional in
other cases.
Schedule 2 to the Bill lists those enabling Acts which
the Government presently considers are likely to have an effect on business
and therefore (prima facie) should trigger the consultation procedures
established under
Part 3. These new requirements only apply to
instruments made at least 6 months after the commencement of this Bill
(
clause 18).

Mandatory consultative requirements apply
to all new legislative instruments made under legislation listed in
Schedule 2. These requirements extend to notifying persons (or any
relevant representative bodies) affected by an instrument of the underlying
reasons for the instrument and inviting them to make written submissions
concerning the proposed instrument (
clause 20).
Clause 34
provides for the list of enabling Acts contained in
Schedule 2, ie
the Acts which are likely to activate the mandatory consultation provisions,
to be amended by regulation.
The House Committee noted its concerns
regarding this form of amending process but recognised the need to maintain
flexibility given the "inclusive/exhaustive" nature of business related
enactments forming
Schedule 2.

Legislative Instrument
Proposals

If after consulting with those affected the
rule-maker still proposes to make the relevant instrument, he or she must
then prepare a written Legislative Instrument Proposal (LIP). Amongst other
things, the LIP must contain a statement of the direct and indirect social
and economic costs and benefits of a proposed instrument. The LIP must also
contain an evaluation of other means for achieving the stated purpose of the
instrument
(clause 21). The LIP must be submitted to a regulatory
review body which will determine whether it meets the requirements of Part 3
of the proposed Bill. Once certified the proposal is then submitted to
further public consultation (
clauses 21 and 22).
Clause 22
responds to recommendation 14 of the House Committee that the Bill should
provide for Ministerial consideration of the appropriateness of a public
hearing where a proposed legislative instrument is controversial or
sensitive. Such hearings are not mandatory.
Clause 24 obliges the
relevant Minister to advertise the calling of submissions or the holding of
a public hearing in relation to the proposed making of a legislative
instrument under the Act. This provision also responds to a recommendation
of the House Committee.

Once consultation has occurred, a
'consultation statement' must be prepared and attached to the explanatory
statement
18 and must be lodged with the Principal
Legislative Counsel (
clauses 27 and 44). The instrument will then be
registered and tabled in both Houses together with the explanatory statement
and any accompanying consultation statement (
clauses 44 and
59).

Exemptions

There are exemptions to
the mandatory consultation requirement. Apart from limiting the provisions
to instruments directly or indirectly affecting business, consultation may
be attenuated or avoided, including:

in relation to minor
machinery matters
[subclause 28(1)(a)(ii)]

where an
instrument meets an obligation of the Commonwealth under an international
agreement by replicating the terms in another form of instrument relied on
or referred to in the international agreement [
subclause
28(1)(a)(iii)]

where an instrument gives effect to a
decision announced in the Federal Budget to: (a) repeal, impose or vary a
fee, tax or charge or; (b) confer, revoke or alter a benefit; or (c) impose,
revoke or alter an obligation
[subclauses 28(1)(a)(iv) and
28(2)]

where the instrument is required for national
security purposes
[subclause 28(1)(a)(v)]

where the
rule-maker decides that there is another adequate reason for
non-compliance
(clause 30) - this exemption is subject to the
limitation that it may only be applied once in relation to an instrument or
instruments dealing with similar subject matter where the reasons for
relying on this exemption are substantially the same in each case

where a regulatory review body certifies that the rule-maker is
required to comply with other consultative provisions established under
another enabling Act or under an agreement
[subclause 31(1)]

where a designated regulatory review body has certified that
the costs of conducting consultation under the proposed Act would outweigh
the benefits from the consultation and there is provision for satisfactory
alternative forms of consultation under an enabling Act or agreement
[subclause 31(2)].

The above provisions also seek to
address concerns raised by the House Committee regarding the width and
application of exemptions available under the 1994 Bill
.

As was the case with the 1994 Bill, this legislation
(clause 33)
provides that a failure to comply with the consultative requirements of the
proposed Act does not affect the validity or enforceability of a legislative
instrument. Information regarding the consultative process must, however, be
communicated to the Parliament when an instrument is tabled, thus providing
the basis for possible disallowance.

The Register

Clause 36 provides for the creation of a Federal Register of
Legislative Instruments divided into parts A, B, and C and an index. Part A
is to consist of new instruments made after the proposed Act commences and
also includes amendments to pre-existing instruments
(clause 41).
Part B is to consist of instruments made before the proposed Act commences
(clause 48). Part C consists of certificates issued by the
Attorney-General (see above). Instruments, on being added to Part A, become
subject to disallowance by the Parliament. Instruments, on being added to
Part B, ie old instruments backcaptured by the proposed Act, do not
automatically become subject to disallowance. Both Part A and Part B
instruments are, however, subject to the sunsetting provisions set out in
clause 66.

Clause 55 provides that an instrument
first made after the proposed Act comes into effect (a Part A instrument) is
not enforceable unless it is registered.

Subject to
certain exceptions relating principally to revenue matters, Part
B/'backcaptured' instruments cease to be enforceable and are deemed to be
repealed if they are not registered in accordance with the requirements set
out in
clause 49. Such instruments are deemed to be repealed on the
day after the last possible day of lodgement (
clause 56).

Clause 52 provides for the creation of the index to the
Register.
Subclause 52(4) details an extensive list of requirements
relating to the identification of instruments on the Register. The index is
to be maintained by the Principal Legislative Counsel who is a designated
statutory office holder located in the Attorney-General's Department
(
clauses 14, 15 and 52)

The Attorney-General must notify
the Parliament of any significant defect in the Register within

6
sitting days of becoming aware of such a defect
(clause 54).

The text of information contained in the Register will be
searchable at AGPS bookshops and on the Internet. As noted in the Minister's
Second Reading Speech,' [u]ltimately all Commonwealth delegated legislation
will be available and searchable in one location.'

Sunsetting

The 1994 Bill did not adopt a process of
automatic repeal of subordinate legislation as recommended by a number of
reports including the ARC's 1992 Report on
Rule-Making. As recorded
by the House Committee, there was significant opposition to sunsetting
within the Australian Public Service.
19 The House
Committee, however, rejected these concerns,
20 noting
that sunsetting provisions apply to subordinate legislation in five of the
States.
21

Clause 66 details the regime
relating to the automatic repeal of legislative instruments made after the
commencement of the proposed Act and those 'backcaptured' by the Act. In
essence, all new instruments will be automatically repealed 5 years after
they have been placed on the register and all existing/'backcaptured'
instruments will cease to have effect from the last date that they could
have been placed on the Register and still remain in force. Thus, for a
measure to have continuing effect beyond the statutory cut-off, it will be
necessary for a replacement instrument to be made.

Subclause
66(1) lists certain types of instrument which are not subject to
sunsetting. These generally relate to matters where the instrument by its
very nature could be expected to remain in force for a period exceeding 5
years. Such instruments include those giving effect to international treaty
obligations and Proclamations formally commencing the operation of Acts of
Parliament.

Subclause 66(4) provides that where an
instrument has two or more commencement dates, the sunsetting date is
calculated from the earliest of those dates.

Scrutiny and
Disallowance

Part 5 of the Bill deals with the
Parliamentary scrutiny of legislative instruments
. The Part replaces
the provisions of Part XII of the
Acts Interpretation Act 1901 which
provides for scrutiny and disallowance of regulations and 'disallowable
instruments' as defined under section 46A of the AIA. The new provisions
extend the scope for scrutiny and disallowance of all but a limited range of
legislative instruments. The new provision also applies to instruments made
under enabling laws passed before the commencement of the proposed Act
[subclause 58(2)].

Clause 58 provides that
legislative instruments must be placed before the House of Representatives
and the Senate not later than 6 sittings days after registration. This
reduces by 9 days the present maximum period that an instrument may be in
effect before being subject to scrutiny and possible disallowance. This
change is presumably made possible by improvements in printing
technology.

Instruments not tabled within 6 sitting days cease
to have effect
[subclause 58(3)].

Clause 59 provides
that instruments lodged with the Parliament must include copies of the
Explanatory Statement required under
clause 44 of the Bill.

Any document incorporated in subordinate legislation by reference
must (on request) be made available to the Parliament for inspection when
the instrument of incorporation is tabled
(clause 60).

Clause 61 sets out the circumstances in which an instrument
will be disallowed or be deemed to be disallowed. The provisions replicate
and expand existing provisions relating to disallowance by providing for
deferred disallowance by Parliament
[subclause 61(4)] and make
possible the partial disallowance of an instrument [refer use of term
'provision' in
subclauses 61(1), (2)(a), (3), (4), (5), (7) and clause
62].

Subclause 61(8) exempts certain instruments
from disallowance. These include Proclamations made solely for the purpose
of commencing an Act or provision in an Act, and various university
rules.

The provisions relating to deferral allow either
House to place a rule-maker on notice that unless the instrument in question
is not re-made to its satisfaction within a defined period (not exceeding 6
months), then the instrument will cease to have effect. This appears to
comply with the House Committee's recommendation 32. That recommendation was
that the Bill should permit either House to pass a motion disallowing an
instrument whilst simultaneously delaying the operation of the motion
effecting disallowance.

The Bill restricts the capacity
of the Executive to remake a disallowed instrument within designated
periods. This is to prevent the Executive from overriding the will of either
House by simply replacing a disallowed instrument with an identical one
which remains in effect until it too is disallowed. Given that instruments
operate until disallowed and may only be disallowed whilst either House is
sitting, these restrictions on the remaking of instruments are fundamental
to maintaining parliamentary control over delegated legislation.

Clauses 63 - 65 largely re-enact sections 48A, 48B and
subsection 49(1) of the AIA which impose restrictions on the remaking of
regulations and disallowable instruments. The provisions in the Bill apply
to all legislative instruments, not just those currently covered by the
AIA.

Review of the Act

Clause 72 provides
for an independent review of the Legislative Instruments Act to be
instituted by the Attorney-General. The review team is to be appointed in
the three months following the third anniversary of the Act coming into
effect. The review must be completed within 15 months of the third
anniversary of the Act and the ensuing report must be tabled in Parliament
within 6 days of each House sitting after the Attorney-General has received
the Report.

Clause 73 provides for a separate
review of the sunsetting provisions once the Act has been in operation for 7
years.

The Bill contains a number of significant and
(arguably) overdue reforms. However, like other measures designed to provide
for more open decision-making and greater accountability in government, some
of the proposed measures raise the cost of government
operations.
22 These additional costs, such as those
flowing from the proposed sunsetting provisions and new consultative
requirements, may be in part offset by improvements in decision-making. As
Professor Pearce notes:

Much has been made in discussions of
the ARC proposals of the cost of consultation. What is not added into the
equation is the cost to the community of defective or inefficient
legislation, the making of which could be avoided if those affected could
point to the problems that it might
cause.
23

This argument has
some force although one would not want to be overly confident that mandatory
consultative requirements are necessarily going to produce better decisions.
In many instances there will not be much scope for improving the 'mindset'
of public officials either because there is nothing wrong with their current
approach or because the cost constraints within which the decision-makers
presently work will continue to apply. A more probable result is that we
are likely to end up with fewer rather than inherently 'better' legislative
instruments.
24

Commonwealth public
servants have for many years been subject to a panoply of accountability
mechanisms of both the traditional variety associated with the doctrines of
responsible government
25 , judicial review and, more
recently, under the so called 'new' administrative law'. Enhanced
parliamentary (principally Senate) scrutiny of government activity also
provides a valuable adjunct to these controls. Likewise more transparent
financial and accounting practices within the Australian Public Service
itself form part of this formal matrix of controls and checks on executive
excess and hubris. Each of these protections on its own is a less than
perfect bulwark for protecting the public interest. However, when combined
with what generally is regarded as a pretty robust administrative ethic
within the APS, existing protections are not as ineffectual as is popularly
supposed. Accordingly, the Bill's initiatives will operate at the margin,
re-inforcing what is, when compared with other domestic and overseas models,
a relatively strong accountability regimen.

Critics
within the federal bureaucracy might argue that a further layer of
accountability measures is unnecessary and unhelpful. And it is at least
probable that the Bill's detailed consultative procedures will make for
overly cautious decision-making at a time when public sector managers are
being pressed to be less risk averse and more results oriented. On the other
hand, and as noted above, similar laws operate in the majority of Australian
States, so there is no more reason for overstating possible costs than there
is for exaggerating the likely benefits of the proposals.

Where the proposed changes may have a beneficial impact is in
reducing compliance costs incurred by business and others subject to
government regulation. Not only will the odd 'dead-letter' be finally
interred but the enthusiasm for making new instruments may also be
curtailed. The new legislation, as the Attorney-General has been reported as
saying, 'will perform a gatekeeper role in relation to legislative
instruments, preventing the unchecked proliferation of delegated
legislation.'
26 Whilst acknowledging this point, there
is a case for tempering the more enthusiastic claims predicting that the law
will greatly reduce business regulation.
27 Two or three
cautionary comments may serve to put the proposed changes in perspective.

First, the proposed changes will have only a slight
impact on total business costs if they are not matched by complementary
changes in all the States and Territories and in local government areas of
responsibility such as town planning. Ideally, if business costs are to be
reduced, a truly national approach incorporating a single access point for
all statutory rules and quasi-legislation should be
pursued.
28 A uniform approach to statutory interpretation
and sunsetting delegated legislation might also make it simpler to conduct
business in more than one State or Territory. The Corporations Law and the
Hilmer reforms show the advantage of such an approach.

Secondly, oft repeated concerns about the growing size of the
'statute books' may now need to be re-considered. Electronic storage and
searching of legislation is now not only feasible but relatively
inexpensive. Accordingly the growth of the 'statute books' is less of a
concern than the relative strengths and weaknesses of the various 'search
engines' available for scanning legal databases including those readily
available on the Internet.

Lastly, the Bill should also serve
to focus attention on whether there ought to be clear guidelines for
determining what matters ought to be included in primary legislation (Acts
of Parliament) and what can be left to subordinate legislation. Professor
Pearce, writing in relation to the 1994 Bill, notes that:

No
provision is included relating to the ARC's recommendation on the division
of matters that should be included in Acts and in legislative instruments .
. . It will be recognised that, paradoxically, the effect of the Legislative
Instruments Act is that there is likely to be more public involvement and
influence on the content of the secondary form of legislation than there is
on Acts.
29

At present there
are no fixed rules for making this decision and existing practice is driven
a range of factors, some constitutional, some political and others random or
ad hoc. As the ARC's 1990
Issues Paper notes:

The
theoretical division was for matters of substance to go in the Act while the
detail of implementation, in particular procedural matters, should be left
for regulations and other legislative instruments. This division is clearly
not always followed - some Acts seem to include a great deal of minor
details while others form only a skeleton for subordinate legislative
instruments which will contain the substance of the matter in question . .
.
30

Given these constraints, it will be interesting to see whether the balance
between primary and secondary laws shifts if the present Bill is enacted
into law. With subordinate legislation subject to greater and more effective
scrutiny as well as more readily available, the case for removing many
standard form and technical provisions from primary legislation and
including them in subordinate legislation is strengthened. Such an approach
would, however, have to take account of other factors. One impediment to the
greater use of secondary legislation is the practical difficulty in
resolving deadlocks between the two Houses in relation to subordinate
legislation whilst each retains an unfettered power to disallow legislative
instruments.
31

These cautionary
comments notwithstanding, the Bill has much to commend it and the preceding
remarks are to encourage consideration of wider issues, not a criticism of
what is a most significant piece of legislation.

Endnotes

1
To
quote the Australian Law Reform Commission's
Issues Paper
(1990:5):

There is an astonishing diversity of legislative instruments. The more
formal are usually known as regulations, rules or by-laws and are drafted in
the same general form as Acts of Parliament. Once one goes beyond these
instruments, it is possible to find orders, determinations, proclamations,
notices, schemes, etc. The choice of name of these instruments and the form
they take does not usually seem to follow any particular pattern. It
appear[s] . . . that, setting aside the question who should make a
legislative instrument, very little turned on the name or form of the
instrument. Nomenclature seemed to be influenced more by tradition than by
any real consideration of the choice of name.

4
As the
House Committee on Legal and Constitutional Affairs points out, this was the
first time that the Committee had been asked to consider a bill that had
already been considered by a Senate Committee. House of Representatives
Standing Committee on Legal and Constitutional Affairs,
Report on
Legislative Instruments Bill 1994: 1.

5
Recommendations
7 and 23.

6
Attorney-General,
Government Response to the Report on the Bill by the House of
Representatives Standing Committee, 27 September 1995: 1.

7
ARC, op cit:
2.

8
The
ARC had recommended that disallowance be replaced by an approval procedure
whereby legislative instruments would not have come into effect until
formally approved by Parliament.

9
'Legislative Instruments Bill: How Will It Work?'
A Paper to the 1995
Administrative Law Forum, Administrative Law Public Administration:
Form vs Substance, edit Kathryn Cole, Canberra 1996: esp 95-109.

10
(1931) 46 CLR
73 at 121.

11
ARC, op cit:
8.

12
Refer endnote
1.

13
Refer
The Hon Mr Justice David Malcolm, 'The Limitations, if any, on Powers of the
Parliament to Delegate the Power to Legislate', 1992 66
Australian Law
Journal 247: esp at 248 and 257.

18
An
'explanatory statement' means a statement prepared by the rule-maker under
section 44 explaining the purpose and operation of the instrument. A failure
to prepare such a statement does not, however, affect the validity of the
instrument [
subclause 44(3)].

19
op cit:
64.

20
Recommendation
23.

21
op
cit,:
61.

22
No
estimate is given in the
Explanatory Memorandum of the additional
cost to government agencies arising out of the new consultation and
'sunsetting' processes. The Memorandum merely states that such costs are to
be borne by the originating agency out of its normal running costs vote
(page 2). In these days of user-pays, creative agencies will no doubt
discover mechanisms for shifting a substantial portion of any financial
burden imposed on them by the Bill back onto those affected by the
legislation.

23
K Cole edit, op
cit: 99.

24
Not necessarily
a bad thing in itself.

25
For
example, the Executive Council plays a valuable (and undervalued) role in
sifting the contents of statutory rules. Indeed this is also one of the
frequently unrecognised yet important performed functions by the
Governor-General.

28
The
ARC 1992 Report,
Rule Making By Commonwealth Agencies, suggested that
similar
general principles should apply in relation to Court Rules and to
rules made under intergovernmental schemes for nationally uniform
regulations. op cit: xvi.

29
1996, op cit:
97-98.

30
op cit:
3.

31
The
absence of such a mechanism proved fatal to the Australia Card legislation
which had provided the trigger for the 1987 simultaneous dissolution. The
Senate indicated it would disallow the necessary operation provisions of the
Australia Card Bill which were to come into force on a date to be fixed by
regulation. Refer G F Carney, 'Section 57 of the Constitution - the Sixth
Double Dissolution', 18
Federal Law Review: 178-187.

Bob Bennett Ph.
06 277 2430

Bills Digest Service

14 October 1996

Parliamentary Research Service

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